This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,573 9 ANGELO TAPIA, 10 Defendant-Appellant. 11
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 12 John W. Pope, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Jacqueline R. Medina, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Darrell M. Allen 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 222 WECHSLER, Judge. 1 Defendant appeals pursuant to a conditi onal plea reserving his right to appeal 2 the denial of his motion to suppress. We proposed to reverse the denial in a calendar 3 notice, and the State responded with a memorandum in opposition. We have 4 considered the State’s arguments, but we are not persuaded that our proposed 5 disposition is incorrect. We therefore reverse. 6 In our calendar notice, we discussed the pat-down s earch of Defendant. The 7 officer’s protective search for weapons was supported by the officer’s observations. 8 However, we proposed to hold that the offi cer could not remove the soft baggies from 9 Defendant’s pockets during the protective search for weapons. In response, the State 10 argues that the officer first felt a hard obj ect in Defendant’s pocket, asked Defendant 11 what the object was, and Defendant identified the object. The State does not explain 12 what the hard object was and does not suggestthat the officer wa s concerned that the 13 object might be a weapon. As discussed in our calendar notice, our cases require that 14 a protective search be limited to what is necessary to discover weapons that may be 15 used to harm the officer or others nearby, and an officer may “remove a hard object 16 if by touch the officer remains uncertain as to whether the object might be a weapon.” 17 See State v. Barragan, 2001-NMCA-086, ¶ 14, 131 N.M. 281, 34 P.2d 1157. 183 Otherwise, the officer may not seize items that would not reasonably be considered 1 weapons or potential weapons. State v. Ochoa , 2004-NMSC-023, ¶ 8, 135 N.M. 781, 2 93 P.3d 1286. 3 In this case, although the officer felt a hard object, there is nothing to show that 4 he was concerned that the object was a weapon. The officer then felt a “soft bulge” 5 and asked Defendant about th e item. This was beyond the scope of a protective search 6 where the purpose of a protective pat-down search is to look for weapons or items that 7 could reasonably be considered weapons or potential weapons. The officer was not 8 permitted to search for or retrieve items that would not reasonably be considered 9 weapons. The evidence seized by the officershould have been suppressed. We note 10 that the State cites to a Florida case in s upport of reversal. Howe ver, the case referred 11 to by the State did not involve a protective search or the more restrictive standard 12 applied to protective searches. 13 For the reasons discussed above and in our second calendar no tice, we reverse 14 the denial of Defendant’s motion to suppress. 15 IT IS SO ORDERED. 16 17

_______________________________ 18 JAMES J. WECHSLER, Judge 194 WE CONCUR: 1

______________________________ 2 MICHAEL E. VIGIL, Judge 3

______________________________ 4 LINDA M. VANZI, Judge 5